Audit, Compliance and Risk Blog

Jon Elliott

Recent Posts

Ontario Reviews When Directors May Be Liable Across Common Employers

Posted by Jon Elliott on Tue, Sep 07, 2021

In June, the Ontario Court of Appeal issued a decision addressing two issues that should interest corporate directors – certainly in the province, and probably throughout Canada. The case is O’Reilly v. ClearMRI Solutions Ltd., and the issues it addresses are:

  • when might two companies be considered “common employers” of a single individual employee, sharing responsibilities for compliance with applicable labour laws; and

  • when might corporate directors, including directors of “common employers,” become personally liable for their company’s non-compliance with those laws.

The rest of this note discusses these issues, and the O’Reilly case decision.


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Tags: Labour & Employment, Canada, Directors Liability, Ontario Court

Maine enacts first US extended producer responsibility law for packaging

Posted by Jon Elliott on Wed, Sep 01, 2021

In recent years, governments around the world have extended solid waste management efforts to support—and in some cases require—recycling and resource recovery efforts to divert more solid wastes from landfills, and to substitute reused materials or raw materials. Increasingly, specialized stewardship programs target particular types of hazardous wastes – used oils, spent batteries, etc. – the national advocacy group Product Stewardship Institute identifies more than 120 such programs spread among 34 US states (I introduced these efforts HERE). Maine already has a number of these programs.

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Tags: Environment, environmental law, Maine, Recyclable, Packaging

OSHA recommends masks for fully vaccinated workers in high COVID-19 transmission areas

Posted by Jon Elliott on Tue, Aug 24, 2021

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers. On August 13, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for workplace COVID-19 risk management. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE and the June 2021 revisions HERE). This revision responds to “breakthrough” infections among vaccinated people by incorporating the latest the Centers for Disease Prevention and Control (CDC) recommendations for masking of employees who are fully vaccinated but work in “areas of substantial or high community transmission” – which as of this writing covers nearly 95% of US counties.
The remainder of this note summarizes the guidance (including unchanged elements) and then highlights the new masking guidance.

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Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, Vaccination, Healthcare

Proliferating product stewardship programs facilitate recycling

Posted by Jon Elliott on Wed, Aug 18, 2021

Solid waste management has come a long way since enactment of the Solid Waste Disposal Act (SWDA) of 1965 to address the national “landfill crisis.” The Environmental Protection Agency (EPA) applies SWDA authority to adopt landfill standards, which are administered by state and local governments. EPA also empowers these state and local governments to do more, not just through additional disposal standards, but through expanded requirements for recycling and resource recovery efforts designed to keep more solid wastes out of landfills. In addition, extended management programs impose “product stewardship” and “extended producer responsibility” on manufacturers. This note discusses these introduces these ideas, and summarizes the extent of state programs that apply them.

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Tags: EPA, SWDA, Environment, environmental law, Recyclable, Stewardship Program

After 50 years, OSHA is reviewing its Mechanical Power Presses Standard

Posted by Jon Elliott on Wed, Aug 11, 2021

The Occupational Safety and Health Administration (OSHA) is conducting a formal public review to consider whether to update its Mechanical Power Presses Standard (29 CFR section 1910.217). OSHA issued the Standard in 1971, and adopted the only formal revision in 1988 (to recognize and guide use of sensers to protect press operators). OSHA has also included these devices in a series of “National Emphasis Programs” intended to focus on safety and compliance. OSHA published a request for public comments in the July 28, 2021 Federal Register, seeking suggestions by October 28. The remainder of this note summarizes the longstanding existing requirements, and questions raised by OSHA in this first general review in half a century.

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Tags: Health & Safety, OSHA, Safety and Health at Work

National Contingency Plan now requires monitoring of chemical dispersants

Posted by Jon Elliott on Wed, Aug 04, 2021


The US government promulgates a “National Oil and Hazardous Substances Pollution Contingency Plan” – more commonly referred to as the National Contingency Plan (NCP) – as the blueprint for responses to spills of oil and hazardous substances. The NCP is used for responses under the Clean Water Act (CWA) and the Superfund law (Comprehensive Emergency Response, Compensation and Liability Act (CERCLA)), and is overseen by the Environmental Protection Agency (EPA) (although you should note that the first NCP was issued in 1968, not only before CWA and CERCLA were enacted, and even before EPA before was created).

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Tags: EPA, CERCLA, Clean Air Act, NCP

Biden Administration proposes to expand EPA’s budget significantly

Posted by Jon Elliott on Wed, Jul 28, 2021

On May 28, the Biden Administration issued its budget proposal for federal Fiscal Year (FY) 2022 (October 1, 2021 through September 30, 2022). As anticipated based on statements from Mr. Biden while a candidate and since his inauguration, the proposal includes many dramatic changes from former president Trump’s proposed budgets. The administration proposes a 21.6 % ($2 billion) increase in the budget for the Environmental Protection Agency (EPA) budget above EPA’s adopted 2021 budget of $9.2 billion. Roughly 90 percent of this increase is related to climate controls and environmental justice, broadly defined.


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Tags: Environmental, EPA

OSHA issues COVID protection standard for healthcare employers

Posted by Jon Elliott on Wed, Jul 21, 2021

Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).

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Tags: Health & Safety, OSHA, Safety and Health at Work, Covid-19, workplace safety, Healthcare

South Coast Air Quality Management District to regulate warehouses’ indirect emissions

Posted by Jon Elliott on Tue, Jul 13, 2021

The federal Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to establish and maintain national air quality standards, including criteria for permits and other authorizations issued to (potential) emission sources by state or local air quality management agencies (with EPA itself as the default regulator if other agencies fail). Forms of authorization include permits for specified stationary emission sources, and equipment/emission standards for mobile sources and some components of stationary sources. Almost all requirements apply to “direct sources” – the equipment or activity that directly produces emissions.

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Tags: Environmental, EPA, CAA, SCAQMD, emissions, warehouses, WAIRE

OSHA revises COVID-19 guidance to reflect vaccinations

Posted by Jon Elliott on Tue, Jul 06, 2021

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE).

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Tags: OSHA, Covid-19, Vaccine, Vaccination